SWIFF-TRAIN CO., METROPOLITAN HARDWOOD FLOORS, INC., B.R. CUSTOM SURFACE, REAL WOOD FLOORS, LLC, GALLEHER CORP., DPR INTERNATIONAL, LLC, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee, THE COALITION FOR AMERICAN HARDWOOD PARITY, Defendant-Appellee
Appeal from the United States Court of International Trade in No. 12-cv-00010-RKM, Senior Judge R. Kenton Musgrave.
WILLIAM E. PERRY, Dorsey & Whitney LLP, Seattle, WA, argued for plaintiffs-appellants. Also represented by EMILY LAWSON.
DAVID FISHBERG, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellee United States. Also represented by DOMINIC L. BIANCHI, ANDREA C. CASSON, MARY JANE ALVES.
JEFFREY STEVEN LEVIN, Levin Trade Law PC, Bethesda, MD, for defendant-appellee The Coalition for American Hardwood Parity.
Before NEWMAN, O'MALLEY, and WALLACH, Circuit Judges.
Wallach, Circuit Judge.
Swiff-Train Co., Metropolitan Hardwood Floors, Inc., B.R. Custom Surface, Real Wood Floors, LLC, Galleher Corp., and DPR International, LLC (collectively, " Appellants" or " U.S. Importers" ) appeal the opinion and final judgment of the United States Court of International Trade (" CIT" ) affirming the United States International Trade Commission's (the " Commission" ) finding of material injury to a domestic industry. See Swiff-Train Co. v. United States ( Swiff-Train II ), 999 F.Supp.2d 1334 (Ct. Int'l Trade 2014); Swiff-Train Co. v. United States ( Swiff-Train I ), 904 F.Supp.2d 1336 (Ct. Int'l Trade 2013). Because the Commission's remand determination was supported by substantial evidence and is in accordance with law, this court affirms.
I. Facts and Proceedings
After receiving antidumping and countervailing duty petitions from Appellee the Coalition for American Hardwood Parity (the " Coalition" ), an ad hoc association of United States manufacturers of multilayered wood flooring, the Commission initiated investigations of imports of multilayered wood flooring (" subject imports" ) from the People's Republic of China (" China" ) on October 21, 2010. See Multilayered Wood Flooring from China, Inv. Nos. 701-TA-476, 731-TA-1179 (Int'l Trade Comm'n Nov. 2011) (Final), Pub. 4278, at 1 (J.A. 492-584) (" Initial Views " ); Multilayered Wood Flooring from China , 76 Fed.Reg. 76,435 (Int'l Trade Comm'n Dec. 7, 2011) (final affirmative injury determination). Appellants, United States importers of multilayered wood flooring from China, participated in the investigations.
Pursuant to 19 U.S.C. § § 1671d(b) and 1673d(b) (2006), in the investigation the Commission sought to determine whether the domestic multilayered wood flooring industry was materially injured by reason of less-than-fair-value and subsidized subject imports from China. Initial Views at 1. Upon completing its investigation in November 2011, the Commission made an affirmative injury determination. Id. at 36.
U.S. Importers challenged the Commission's final affirmative injury decision before the CIT. In Swiff-Train I, the CIT remanded four issues to the Commission, including " whether the subject imports were a 'but-for' cause of material injury to the domestic industry," and affirmed all other aspects of the Commission's determinations. Swiff-Train I, 904 F.Supp.2d at 1338. Specifically, as to causation, the CIT found the Commission's determinations to be " unsupported by substantial evidence because the Commission failed to adequately consider the effect that the severe disruption of the home building and remodeling industries had on the domestic like product industry." Id. at 1346. Therefore, the CIT directed the Commission " to ensure that the subject imports, as compared to other economic factors affecting the domestic industry, were not a but-for cause of the injury." Id. at 1347. The CIT, however, " disagree[d] [with U.S. Importers] that the statute in conjunction with our appellate precedent require us to restrict application of the 'but-for' causation standard to a particular factual scenario, or a particular aspect of the material injury inquiry." Id. Instead, the CIT found, " the statutory 'by reason of' standard clearly applies to the overall causation analysis to be performed by the Commission." Id.
On remand, the Commission reopened the record and solicited written comments from Appellants and other parties. On September 30, 2013, the Commission submitted its determinations on remand to the CIT, wherein it continued to find the domestic industry was materially injured by reason of subject imports. See Multilayered Wood Flooring from China (Remand), Inv. Nos. 701-TA-476, 731-TA-1179, Pub. 4430 (Int'l Trade Comm'n Sept. 30, 2013) (J.A. 942-86) (" Remand Views " ). Specifically, the Commission concluded after an extensive analysis, " but for the unfairly traded subject . . . imports from China in the U.S. market during the [period of investigation], the domestic industry would have been materially better off both during the housing market collapse and during the developing recovery that followed." Id. at 47.
On December 20, 2013, U.S. Importers submitted their objections to the Remand Views to the CIT, arguing the Remand Views did not comply with the court's remand order in Swiff-Train I to apply a " but-for" causation standard. On July 16, 2014, in Swiff-Train II, the CIT sustained the material injury determination, finding the Remand Views complied with its remand order. Swiff-Train II, 999 F.Supp.2d at 1340. The CIT found the Commission " properly framed the legal basis upon which to determine whether subject imports are the cause-in-fact of material injury, to wit, 'notwithstanding any injury from other factors,'" which the CIT characterized as " an obvious expression of a 'but for' cause-in-fact inquiry." Id. at 1344.
Appellants appealed to this court on September 8, 2014. This court has jurisdiction under 28 U.S.C. § 1295(a)(5) (2012).
I. Standard of Review
This court reviews decisions of the CIT de novo, " apply[ing] anew the same standard used by the [CIT]." Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1380 (Fed. Cir. 2008) (internal quotation marks and citation omitted). Under that standard, this court must uphold the Commission's determinations unless they are " unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (2006); see also Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed. Cir. 1997) (" This court duplicates the [CIT's] review of the Commission's determinations, evaluating whether they are 'unsupported by substantial evidence on the record, or otherwise not in accordance with law.'" (quoting 19 U.S.C. § 1516a(b)(1)(B)(i))). " Although such review amounts to repeating the work of the [CIT], we have noted that 'this court will not ignore the informed opinion of the [CIT].'" Diamond Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348, 1356 (Fed. Cir. 2010) (quoting Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed. Cir. 1994) (" Although reviewing anew the [Commission's] determination, this court will not ignore the informed opinion of the [CIT]. That court reviewed the record in considerable detail. Its opinion deserves due respect." )); Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed. Cir. 2007) (" When performing a substantial evidence review, . . . we give great weight to the informed opinion of the [CIT]. Indeed, it is nearly always the starting point of our analysis." (internal quotation marks and citation omitted)).
Substantial evidence is defined as " more than a mere scintilla," as well as evidence that a " reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938). This court's review is limited to the record before the Commission in the particular proceeding at issue and includes all evidence that supports and detracts from the Commission's conclusion. Sango Int'l L.P. v. United States, 567 F.3d 1356, 1362 (Fed. Cir. 2009). An agency finding may still be supported by substantial evidence even if two inconsistent conclusions can be drawn from the evidence. Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).
II. Legal Framework
The United States imposes duties on foreign-produced goods sold in the United States at less-than-fair value (" antidumping duties" ), 19 U.S.C. § 1673(1), or that benefit from subsidies provided by foreign governments (" countervailing duties" ), id. § 1671(a)(1). Commerce is responsible for investigating whether there have been, or are likely to be, sales at less-than-fair value or whether a countervailable subsidy has been provided, while the Commission determines whether " an industry in the United States . . . is materially injured, or . . . is threatened with material injury . . . by reason of imports" of the subject merchandise. Id. § § 1671d(a)(1), (b)(1), 1673d(a)(1), (b)(1) (emphasis added). " If both inquiries are answered in the ...